Plaintiffs' reply in support of their motion for partial summary judgment

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Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 28 of 54 “Yes,” when asked whether he testified during the termination hearing that he used the Tesla coil on Zach Dennis’s arm).) Instead, he attempts to divert attention away from this material admission by trying to create disputes, supported only by his own denials, over immaterial facts. For instance, whether Freshwater put Zach’s arm on the overhead projector or not, or whether Freshwater used his left or right arm to hold down Zach’s arm down while using the Tesla coil (Deschler Mem. in Opp. at 5-6), does not alter the critical fact that Freshwater applied the Tesla coil to Zach’s arm, which constitutes the offensive contact required to establish battery. Freshwater’s efforts to conjure up irrelevant discrepancies in the record cannot help him to escape summary judgment here. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248 (noting that “[o]nly disputes over facts that might affect the outcome of the suit . . . will properly preclude the entry of summary judgment” and emphasizing that “[f]actual disputes that are irrelevant or unnecessary will not be counted”); Fed. R. Civ. P. 56(c) (defining summary judgment as “proper if no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law”) (emphasis added). 3. Freshwater’s Remaining Arguments As To The Dennises’ Battery Claim Are Unavailing. a. The School District’s Authorization Or Ratification Provides No Defense For Freshwater. In yet another effort to obscure the material fact that he committed battery, Freshwater tries to pass blame for his misconduct onto Mount Vernon school officials. He argues that school officials “witnessed” or “knew or should have known” of his use of the Tesla coil, and thus implicitly approved of that use in a way that alleviates his liability. (Deschler Mem. in Opp. at 9-10.) Nowhere, however, does Freshwater cite case law to back up this novel legal theory. This is likely due to the fact that even under the most basic understanding of respondeat superior, the employee or agent remains liable for his or her own actions. See, e.g., Am. Ins. Group v. 21
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 29 of 54 McCowin, 218 N.E.2d 746, 749 (Ohio Ct. App. 1966) (discussing respondeat superior and the liabilities of employers and employees). As a former Mount Vernon Middle School employee, Freshwater may try to sue his superiors for failing to correct his own wrongs, but these indemnification issues are not questions before this Court. Indeed, under Freshwater’s faulty logic, if school officials witnessed, knew of, or even encouraged his punching of other students or any other tortious conduct, it would absolve him of liability. This reasoning cannot stand. Further, even if certain school officials did condone some of Freshwater’s Tesla coil experiments, Freshwater cites not one official who approved of his applying the device to students’ arms in the shape of a cross. For instance, Freshwater asserts that Jeff Kuntz, a former Mount Vernon Middle School principal, was present to witness Freshwater’s use of the Tesla coil. (Deschler Mem. in Opp. at 9-10.) But according to Mr. Kuntz and Freshwater, none of the demonstrations that Mr. Kuntz witnessed included a branding or similar exercise. (Freshwater Termination Hearing Tr., John Freshwater Test., 12/11/09, at 4559-60 (attached as Ex. K to Deschler Mem. In Opp.).) Thus, not only is the school officials’ approval of Freshwater’s cross burning experiment irrelevant, it is nonexistent. b. Freshwater Cannot Hide Behind Other Teachers’ Use Of The Tesla Coil. It is similarly futile for Freshwater to try to skirt liability for battery by pointing out that other Mount Vernon Middle School teachers used the Tesla coil. (See Deschler Mem. in Opp. at 7-8.) These teachers’ experiences and actions with this device have no bearing on whether Freshwater committed battery when he used the Tesla coil on Zach’s arm. Not surprisingly, Freshwater cites no case law for the proposition that just because other teachers have improperly used an electrostatic device on their students means that he should not be held accountable for doing so. As a middle school teacher, Freshwater should be quite familiar with the well-known 22
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Plaintiffs' reply in support of their motion for partial summary judgment

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